Former Head of the Center for Financial Transaction Reports and Analysis Center (INTRAC) Yunus Husein and Bivitri Susanti as experts presented by the Petitioner delivering their expertise in the judicial review hearing of the Law on Prevention and Eradication of Money Laundering (TPPU Law), Tuesday (11/12) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The development of money laundering (TPPU) cases should also allow TPPU investigators to investigate predicate offenses. If the investigators are limited to only six agencies as stated in the Elucidation to Article 74 of Law Number 8 of 2010 on the Prevention and Eradication of Money Laundering (TPPU Law), resolution of corruption cases will not be optimal. This was conveyed by Former Head of the Financial Transaction Reporting and Analysis Center (INTRAC) Yunus Husein in the latest session of case Number 74/PUU-XVI/2018, Tuesday (11/12) at the Constitutional Court (MK). 

Yunus, who was present as an expert for the Petitioner, also said that compromise during the drafting of the TPPU Bill was in relation to predicate offense investigators not necessarily being able to become TPPU investigators. As Head of INTRAC at the time, Yunus acknowledged that there had been compromise on "predicate offense investigators" being officials that had been authorized by the law to carry out investigations, namely the Indonesian National Police, the Prosecution Office, the Corruption Eradication Commission (KPK), the National Narcotics Agency (BNN), as well as the Directorate General of Taxes and the Directorate General of Customs and Excise of the Ministry of Finance of the Republic of Indonesia. However, overtime, with the vast number of reports and cases, the investigators\' performance had not been optimal. "So for these reasons, we believe that the criminal investigation into money laundering should be investigated by predicate offense [investigators] for legal certainty and no discrimination against law violators," Yunus said in response to the petition petitioned by the Indonesian Anti-Money Laundering Institute (LAPI), Auriga Nusantara Foundation, Charles Simabura, Oce Madril, and Abdul Ficar Hadjar.

Yunus also suggested that the Elucidation to Article 74 be omitted so to open money laundering investigations to predicate offense investigators. According to him, this would provide legal certainty and there would be no discrimination against violators if handled by different investigators. "This is what we expect, so that not only will the use of the TPPU Law become more widespread, [but also] efforts to pursue the proceeds of crimes will also become more optimal," Yunus said. 

Regarding the question by Constitutional Justice Wahiduddin Adams on the possibility of INTRAC being an investigator, Yunus said that this was not necessary. According to him, the addition of INTRAC\'s authority would be akin to \'fighting\' for authority with the Police, the Prosecution Office, and the KPK. "Actually, in the past there were many suggestions, [among which about] INTRAC becoming an investigator, yes. In our opinion, it\'s not necessary. In football, INTRAC is like a midfielder. He only makes passes as a playmaker, giving feedback to the striker, the attacker, the investigator. [Those] are the Police, prosecutors, KPK, tax office, customs office, and BNN. If INTRAC also became an investigator, it would fight for the pass as just as the three corruption investigators, that is, the Police, prosecutors, and KPK," he said firmly. 

Discriminating 

Meanwhile, Bivitri Susanti as another expert for the Petitioner explained that Article 2 paragraph (1) letter z and the Elucidation to Article 74 of the TPPU Law is discriminating and unconstitutional. According to Bivitri, the two articles had caused legal uncertainty by causing confusion in its implementation, not only among law enforcement officials, but also for the community at large. "Article 74 of Law Number 8 of 2010, which clearly stipulates who the investigators are, is limited by the norm in the elucidation, which is not allowed to restrict the norm. In practice, prosecution documents are often not optimal because prosecutors consider investigators of predicate offenses not authorized to carry out investigations," he explained. 

Bivitri also said that there was ambiguity, both in Article 2 paragraph (1) letter z and the Elucidation to Article 74 of the TPPU Law, causing the settlement of a similar case to drag on. "Thus giving rise to practices that actually discriminate and violate constitutional rights," she added. 

The Petitioner reviews Article 2 paragraph (1) letter z and the Elucidation to Article 74 of the TPPU Law. The Petitioner had argued that the provisions contradict the 1945 Constitution for several reasons. First, the conflict arose because in Article 33 paragraph (4) of the 1945 Constitution, it is stated that the national economy is organized on the basis of economic democracy upholding the principles of togetherness, efficiency with fairness, sustainability, environmental insight, self-sufficiency, and by keeping balance in the progress and unity of national economy.  

The Petitioner claimed that actually money laundering based on the general elucidation to Law No. 8 is a criminal act that threatens the stability and integrity of the economic and financial systems. In this context, Article 2 paragraph (1) letter z and the elucidation to Article 74 cause the efforts to eradicate money laundering not optimal. (Nano Tresna Arfana/LA/Yuniar Widiastuti)